Forest Mine Rule Offers Greater Oversight, Divides Green Groups

A proposed rule aiming to open national forests to more mining improves federal oversight of mines in a way that’s welcomed by some environmentalists and analysts, but others say it would reduce public participation and limit accountability.

The US Forest Service’s proposed “Locatable Minerals” rule, announced in February, would allow mining companies to avoid having to provide the agency with a full mining plan before opening a small mine in a national forest. But, it would also implement some Government Accountability Office recommendations for mine oversight, according to the Forest Service. The rule is open for public comment until April 21.

If finalized, the rule would contradict the Trump administration’s efforts to remove roadblocks to mining, logging, and oil and gas drilling on federal lands nationwide.

“This proposed rule has some advantages over current rules, some operational flaws, but overall it does not fit at all within the Trump administration’s deregulatory approach,” said Aaron Mintzes, counsel for Earthworks, an environmental group.

The Forest Service said the changes will reduce delays, protect surface resources, and support a reliable domestic source of minerals. Its proposal would align the Forest Service’s mining rules with those of the Bureau of Land Management.

“This isn’t about relaxing the rules, it’s about improving the review process for small-scale operations that have consistently proven to have minimal effect on surface resources,” US Forest Service Chief Tom Schultz said in an emailed statement.

Shifting Species Act Compliance

The proposal allows companies to open small mines of five acres or less in national forests without submitting a plan of operations to the Forest Service, but it would require some small miners to issue an operating notice, obtain financial assurance, and submit a plan to reclaim the mine when it stops operating. Most small mines would for the first time be required to meet with Forest Service staff before submitting notice of a plan to mine.

The Forest Service’s current regulations don’t include any provision for enforcement, but the new rule would give the agency enforcement tools for when a mining company fails to comply with regulations. It would also expand environmental protection standards to address impoundment facilities, roads, public safety, fire prevention, historical resources, and other factors.

The agency is replacing a 50-year-old subjective standard for what kind of mine would need to submit an operations plan with a more objective standard that limits mines needing to submit a plan to those five acres or larger, said Andrew Irvine, of counsel at Stoel Rives LLP who represents industry clients.

“The lowest-impact activities could proceed with no notice at all,” he said.

The rule would also shift responsibility for Endangered Species Act compliance from federal agencies to mining companies, Irvine said.

Currently, nearly all mining operations in national forests require a plan of operations, triggering an agency-led consultation on endangered species. But the proposal allows some mines to proceed without a plan, avoiding the trigger for an ESA consultation, and putting the onus on mining companies to determine whether they’re going to harm an endangered species and seek a federal permit to harass or harm it, Irvine said.

“Operators are responsible for complying with all laws,” the Forest Service said in an unsigned email when asked how the draft rule would affect ESA compliance.

Clarity Needed

The mining industry supports the changes because it eliminates ambiguity in the regulations and gives miners more regulatory certainty, said Ashley Burke, spokeswoman for the National Mining Association.

The discrepancy between BLM and Forest Service rules “means approvals for small scale exploration on Forest Service lands can take years while those same activities on BLM lands can take weeks,” Burke said. “This proposal would align the two.”

Small mining companies can expect the Forest Service to more efficiently review their operations, said Danielle DiMauro, a Denver-based shareholder at Welborn Sullivan Meck & Tooley PC.

“Mining activities that qualify for operating notices likely will be able to proceed sooner than they would have in the past,” she said. “The agency estimates about 62 operations per year would be conducted under an operating notice under the proposed rule.”

Large mines, such as Twin Metals’ proposed copper mine near Minnesota’s Boundary Waters, would continue to be required to submit full plans of operation to be submitted before the Forest Service would permit it. The House in January passed a resolution to disapprove of a Biden administration ban on mining near the Boundary Waters. Key Senate Republicans say they’re unsure they’ll support it.

Net Increase in Mining

Environmental groups are divided on the proposed rule.

The provision requiring miners to meet with Forest Service staff is an improvement because the agency can alert mining companies of any conflicts with tribal rights and begin tribal consultation, and help the company comply with the National Environmental Policy Act, said Mintzes, of Earthworks.

“Unlike oil, gas, or coal extraction, hardrock mine operators can explore without asking the government for permission,” he said. “Instead, they tell the government where they will mine. This is a great source of conflict with communities who, under the current rules, do not receive any notice.”

The proposed rule would allow for only the most limited operations—those that use hand tools, not mechanized equipment—without notifying the Forest Service, he said.

Though the proposal offers some improvements, it would likely lead to mining spreading more widely across national forests because it’ll be easier for miners to stake claims there, said Rachael Hamby, policy director for the Center for Western Priorities, an environmental group.

She said she worries that the rule would cut out some public input and have fewer opportunities to hold miners accountable.

“Even with the positive elements, the net effect will be an increase in mining exploration and other activity on Forest Service lands and a decrease in environmental review and public engagement,” she said.